HKSAR v. KEUNG CHI SHING

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1997, No. 93
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 31 January 1997 the applicant was convicted before Deputy Judge Wesley Wong and a jury of two counts of rape. Earlier in the trial which began on 20 January, he had pleaded guilty - in the middle of giving evidence - of four counts of blackmail. The judge sentenced him after the verdicts to a total of 14 years imprisonment. He now seeks leave to appeal against his convictions for rape and seeks leave to withdraw his plea to blackmail on count 16. Also, he seeks leave to appeal against the sentences.

2. The indictment contained 17 counts. There were eight related pairs of counts of robbery and rape of five prostitutes. There was one single count of robbery which was unrelated to a count of rape. After two of the victims had given evidence, the judge withdrew the counts concerning them from the jury. The result was that there were, for the jury's consideration at the end of the trial, three counts of rape. The jury acquitted the applicant of one of those counts. That charge laid related to a rape as long ago as June or June 1979. The convictions related to two victims. Count 8, an offence which took place in September and October 1991, and the last count 15, in January 1996.

The pleas to blackmail

3. The pleas of guilt to the blackmail offences arose after the applicant had departed from his instructions when giving evidence in chief. Far from denying involvement as he had previously, he said that he was the local bully boy collecting tea money from the victims. The consequence was that he accepted advice and he pleaded guilty before the jury to counts 1, 7, 13 and 16.

4. Count 16 as laid alleged robbery on 15 January 1996. The blackmail pleaded to was an alternative to count 16 accepted by the prosecution. The background, however, was that the victim had been cross-examined on the two offences of robbery and rape, both alleged to have taken place on 15 January 1996, to the effect that the applicant had not visited or seen the victim after about July 1995. The victim conceded that that could have been the position.

5. The applicant also gave evidence to the same effect. He had not seen this victim after July 1995. He maintained that account when cross-examined and when cross-examined after the plea of guilty to count 16.

6. Before he addressed the jury, the counsel then acting for the applicant appreciated the difficulty that, although the applicant was maintaining in evidence that he had not seen the victim after July 1995, he had pleaded guilty to count 16 admitting that he had blackmailed the victim on 15 January 1996.

7. It is not necessary to give any detailed account of what happened thereafter. There was an application to allow the applicant to withdraw his plea which was refused. There was an application to allow the applicant to be re-called to explain the position. That was also refused. The judge, apparently taking the view so far as this count was concerned that he was functus officio, said that the matter simply went to credibility.

8. This is the background relating to the plea to count 16 to which we will return.

9. At an early time in the trial - on 22 January - there was an application for severance so that the counts concerning the victim making the most complaints could be tried separately. The judge refused that application.

The application to sever

10. Turning to the matters advanced in support of the application for leave to appeal against the convictions, Mr John Haynes, who appears for the applicant, takes two points. The first concerns the judge's refusal to sever the counts in the indictment. We can deal with this very briefly. The judge heard the application by counsel who invited him to consider relevant authority. Having done so, the judge declined to accept the application and dismissed it without giving reasons. Mr Haynes submits that it was incumbent upon him to give reasons, citing as authority, R v Cannan [1990] CrimLR at 869. In that case, the English Court of Appeal held inter alia as follows:

"It may well be that often the judge in sexual cases will order severance. It may be that members of the Court of Appeal faced with the problem the present case might have come to a different conclusions as to the way in the discretion should be exercised. But the fact remained that section 5(3) of the Indictments Act 1915 gives the judge a discretion and that is not a matter with the Court of Appeal will interfere, unless it can be shown that the judge has failed to exercise his discretion upon the usual and proper principles, namely, taking into account all things he should and not taking into account anything he should not. In the present case there was no doubt that the judge did take into account everything which was relevant and did not take into account anything which was irrelevant."

Mr Haynes submits that it was incumbent upon the judge to give reasons so that this Court can review them to determine whether he took everything relevant into account and did not take into account matters that were not relevant.

11. It is quite sufficient to say that having had the authorities put before him and having rejected the application, there was no basis upon which counsel in this case can say that the judge took into account irrelevant matters or did not take into account those matters that he should have done. The real point made, however, is that because there were a number of different victims giving evidence of separate rapes, severance ought to have been ordered. That is not a matter upon which this Court is able to say that the judge was in error. There was no reason to think that a fair and just trial could not take place for rapes of prostitutes which did not involve any unusual or scandalous matters.

12. The approach a court should take to the question of severance has been set out in R v Christou [1996]2 WLR 620. That is an authority which we would adopt. In R v Boardman there appears the classic statement by Lord Cross which is to be regarded as the high watermark of this particular principle. It is not necessary in this case for this Court to say more.

The refusal of the judge to allow the applicant to withdraw his plea or give further evidence

13. The second point taken by Mr Haynes concerns the failure of the judge to allow the applicant to either withdraw his plea or to give further evidence to explain his plea of guilty to robbery on count 16 on 15 January 1996 when he denied rape on the same day in count 17 and had given evidence consistently that he had not seen the victim after July 1995.

14. The difficulties by which the judge felt himself to be constrained are not real ones. Unquestionably at that stage the judge was not functus officio. He could have taken such steps as he felt would ensure that the applicant was fairly and justly treated in relation to an error which his counsel put before the judge in the absence of the jury. The result was that the jury knew that the applicant had pleaded to count 16 dated 15 January 1996 and so on one view of the matter was admitting - contrary to the evidence he had given - that he had been with the victim on that occasion.

15. Counsel for the prosecution made much of the point in his final address, saying this:

"Now you heard yesterday the defendant giving evidence, and he said, 'No, I didn't rape Madam LAU. In fact I wasn't even there on the 15th of January of 1996,' an amazing piece of evidence because you will recall, less than an hour before he told us that he wasn't in the flat on the 15th of January 1996. Less than an hour before that evidence, had entered a plea of guilty to blackmail Madam LAU. And where was that, the scene of that crime? It was in Madam LAU's flat. What was the date of that blackmail? It was the 15th of January. Now he can't have it both ways."

Counsel for the applicant was no doubt constrained in what he could say about the matter but it was important and was referred to by the judge in his summing-up. Dealing with count 17, he said at p.16:

"For counts two and eight the date in which the alleged rape took place was a date between two months while for count 17, although the defendant pleaded guilty to blackmail on the 15th of January 1996, on which day the alleged rape took place, he, in evidence, said that he had never seen LAU Siu-long after July 1995.

...

So when you retire, you have to consider all the evidence. You have first of all to consider whether the defendant had been in the premises when the alleged rapes took place."

16. The failure of the judge to allow the applicant to put right - insofar as he could - the discrepancy between his evidence and the plea, in our judgment, makes the conviction on rape in count 17 - alleged to have taken place on 15 January 1996 -unsafe. The jury were invited to take into account the plea when it was unfair to do so in the absence of the applicant being allowed to explain what had happened. We should add that the applicant clearly admitted blackmail of that victim. His point was that the date - 15 January 1996 - was not the correct date. So far as the plea is concerned, having admitted the offence, the date is not material although, of course, it was material on count 10.

17. In those circumstances, on that ground alone, the verdict on count 17 cannot stand. But on count 16, there is no reason for allowing the plea of guilty to be withdrawn.

Counsel for the prosecution cannot support the convictions for rape

18. The matter does not end there because the prosecution represented by Mr Saw SC has drawn certain other matters to our attention in accordance with his duty. With his usual fairness, he points out a number of other matters as a result of which he does not feel able to support either conviction of rape. We can deal with those matters fairly briefly.

19. The first is that the judge obscured the true defence in the summing-up. By the time the judge was summing-up, the applicant had pleaded guilty to blackmail and by that time identity was no longer in issue. In spite of that the judge gave this direction.

"Identification evidence is therefore in issue. This is a trial where the case against the defendant depends to a large extent or wholly on the correctness of one or more identifications of him which the defendant from his defence must mean that it was mistaken."

That indeed was not the applicant's defence on these matters. The applicant's defence was that the victims had fabricated the allegations of rape against him for reasons which could be readily inferred. They wanted to get rid of "a bully boy collecting tea money from them". That was a fundamental flaw in the summing-up. It related to both the counts of rape upon which convictions were recorded.

20. Finally, the judge gave the jury directions on corroboration. This is the direction he gave:

"Corroboration simply means some other material evidence in support thereof implicating the accused. To put it another way, it means some independent evidence that is not evidence from the complainant which confirms in some important respects not only that the crime has been committed, but also that the accused had committed it. I say confirms in some important respect because it is not necessary that there should be independent evidence of everything that she has told you, so there are two elements. One, evidence that the crime has been committed and two, the accused had committed it.

It would be for me to point out to you the evidence which, if you accept it, would be capable of independently confirming the complainant's evidence but there is none."

We pause to say that up to that point the direction is impeccable. It is for the judge to identify to the jury such matters as can amount to corroboration, and if there is none, to direct the jury accordingly. But the judge went on:

"Nevertheless, even if it is your view that that there is no corroboration, that is the complainant's evidence is not independently confirmed, if you warn yourself of the danger of convicting a person without corroboration and having so warned yourself you may still rely on the complainant's evidence alone if you feel sure, that is if you are satisfied, beyond reasonable doubt, that she is telling the truth. To put it simply, after looking for if there is no corroboration and having warned yourself of the danger of convicting the accused without corroboration you can still convict if you are sure of the guilt of the accused."

At the least that is a confused direction. It leaves the possibility that the jury could seek corroboration for itself which it certainly cannot. Further, that direction blunts the warning the judge must give of the danger of convicting without the evidence of a victim being corroborated. That also is a serious flaw in the summing-up.

21. There is one final matter. The warning which the judge gave that the counts were to be treated separately, that separate verdicts were to be given and, therefore, the jury should not take the evidence of one victim on rape as support for the evidence of another, was given in these terms - the only time the judge adverted to it:

"They are three separate counts, so you should consider each count separately. If you find the accused guilty of one count, it does not mean he is guilty of the other counts which he has been charged with.

So I do not think I can usefully direct you further without having repeated myself.

When you retire, you should separate the charges and consider them separately and return a separate verdict on each count."

Those directions do just satisfy the requirements. In a case such as this, judges usually give a much sterner warning, pointing out the evidence which was not to be taken into account. In this case it would have been quite simple to identify the victims saying that because one victim has given evidence about a rape, it does not in any way support the evidence of another victim who makes a similar complaint.

22. For these reasons, we allow the application; grant the application; treat the hearing as the hearing of the appeal and we quash the two counts of rape.

Re-trial

23. There is an application for re-trial on the two counts of rape. Having heard counsel on this matter, we order that there will be a re-trial on a new indictment in relation to those two counts.

Sentence

24. We turn now to the question of sentence.

25. The sentences passed in the court below have caused both counsel and the court difficulty. The judge passed sentences which he said, amounted to a total of 14 years. When he was invited to say how that was calculated or in respect of which counts particular sentences were passed. He specified that the sentences should be partly consecutive and partly concurrent. It suffices for us to refer to part of what the judge said:

"I have worked it out. The 7th count will start to run one year after you've served the 1st count. And then the 8th count will start to run after you've served one year in respect of the 7th count. And the 13th count will start to run after you've served four years of the 8th count. And the 16th count will start to run after you've served half a year after you've served the 16th count - of the 13th count. And the 17th count will start to run after you've served part of the ..."

The effect of the sentences passed defeated this Court. It does not matter now because of the result of the appeal on conviction. But it is important when a judge passes sentences for a number of offences he should do so clearly so that the person who is the subject of the sentences may understand what sentences have been passed and the effect of them.

26. We turn now to the sentences that we impose in relation to the four counts of blackmail to which the applicant pleaded guilty. As pointed out by Mr Haynes, the mitigation primarily is that having decided to admit the offences, he pleaded guilty at once but, of course, these were late pleas when the trial was almost complete.

27. The offences involve using threats, but no violence, to obtain small sums of money from prostitutes who were in no position to resist. They were nasty offences and they spread over a long period but it is fair to say that in total there was only a relatively small amount of money involved. They remain serious offences. Although the judge took three years as his starting point, we think it fair to take 2 1/2 years on each count as the starting point for each offence. That would involve 10 years if they were all consecutive but it is necessary to reduce that sentence on the grounds of totality. We reduce that sentence to 6 years and then take into account the late pleas and give credit for those and reduce the total sentence to 5 years imprisonment. The sentence we pass is 1 year 3 months consecutive on each count.